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FAQ: Determining Fault in a Personal Injury

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What Does “Negligence” Mean in Personal Injury Law?

Negligence is a legal theory that describes a certain level of carelessness by a person that causes an injury to another person or their property. In personal injury law, negligence falls into the “unintentional tort” area, meaning that the negligent party did not necessarily intend to cause the injury to the victim party.

Some examples of negligence claims include car accidents, a landlord’s failure to maintain the property for a tenant, or a city’s failure to fix a hazardous sidewalk.

There are four basic elements the plaintiff, or the injured party, to a personal injury suit needs to prove to be successful:

  1. Duty: The plaintiff must prove the defendant had a duty of care to the plaintiff. In car accidents, this duty is easy to show. All drivers have a duty of care to other motorists as well as pedestrians.
  2. Breach of Duty: The plaintiff must prove that the defendant breached or failed to perform their duty of care. Here, a “reasonable person” standard is frequently used. This standard is behaving the way a reasonable person would in similar circumstances. Other ways to prove a breach is if the defendant violated a law such as running a red light.
  3. Causation: The more difficult element is causation. The plaintiff must show that the defendant’s breach of duty was the cause of their injuries. Just because the defendant breached a duty is not enough, it must have been the reason the plaintiff was injured. There are two steps to proving causation: 
    • The first is “cause-in-fact” which means but for the defendant’s action, the plaintiff would not have been injured. 
    • The second is “proximate” cause which means that the injuries are close in time to the actual accident; not some time later. For example, a car accident occurs and the plaintiff gets checked out by a doctor immediately and no injuries are detected. Then, two months later the plaintiff is suffering from back pain. The plaintiff may have difficulty showing proximate cause.
  4. Calculable Damages: The plaintiff must demonstrate an actual monetary figure regarding their expenses. Examples include medical bills, cost of replacing or repairing property, loss of wages due to the injury, and future economic loss due to a permanent disability. Damages cannot include unrelated expenses or losses that are not monetarily calculated.

How is Fault Determined in a Personal Injury Suit?

Fault is typically tied to the causation element. The plaintiff must prove through the use of evidence that the defendant was the cause of their injury in order for the Court to find the defendant at fault.

The plaintiff can use eyewitness testimony, video surveillance, medical documentation, defendant’s statements and expert testimony to show this element.

Expert witnesses can include accident reconstructionists, doctors or any specialist who may be able to explain how the defendant’s actions caused the plaintiff’s injuries.

Sometimes causation can be difficult in cases such as medical malpractice or defective products. Because a product can pass through many hands it may be difficult to discover who is at fault.

In medical malpractice cases, it may be difficult to show that the doctor acted negligently even if they were the cause of the injury as medicine is a practice and does not produce exact results.

As an injured party or if you believe you will be accused of negligence, it is important to write down what happened as soon as possible. Always keep a log of events, communications ,and records afterwards.

This includes receipts for expenses, any statements made between the parties or insurance companies, etc. These documentations can assist in proving your case later.

Can I Still Be Compensated for My Injuries if I was Somewhat at Fault?

The majority of states follow a comparative negligence standard in determining fault. A minority of states follow a contributory negligence system.

If you were somewhat at fault but the defendant was mostly at fault, most Courts will take this into consideration in determining how much the defendant has to pay.

However, in a contributory negligence state, the plaintiff may be prohibited from recovering if they were somewhat responsible. Another area of concern is assumption of risk. If the plaintiff assumed the risk of injury then they may not be able to recover for their injury.

If I Had a Condition that Made My Injuries Worse, Can I Still Be Compensated?

It depends on the pre-existing condition and the nature of the new injury caused by the defendant. In many cases, the Court may deduct some expenses if they are due to the pre-existing condition rather than the defendant’s actions.

However, if you would not have incurred the expenses but for the defendant’s actions, you should be able to recover.

Do I Need a Personal Injury Lawyer?

A personal injury lawyer is recommended as they can be helpful in deciding whether your claim will be successful, gathering evidence, and deciding whether to use an expert witness. Your lawyer will also guide you through the lawsuit and represent you in court.

However, it is important to have all of the relevant information at hand before you contact a local personal injury lawyer. The more documents and records you have, then the easier it will be for your lawyer to let you know if you have a possible claim.

Photo of page author Lauren Wallace

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 05-29-2018 12:05 AM PDT

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